The imposition of sanctions by the United Nations Security Council
Introduction
We live in a world of sanctions. Every day, the actions of states, entities and individuals are influenced by sanctions designed to exert pressure in the international arena. Yet sanctions vary widely in nature and scope. They differ in their origin (whether imposed by a single state, a group of states, or an international organisation), in their targets (which may include states, groups, entities, or individuals) and in their objectives and methods (ranging across military, political, and economic measures).
These differences give rise to an important terminological challenge, namely whether all these different measures should be regarded as sanctions under international law. Traditionally, the term 'sanction' has been reserved for measures short of war, adopted collectively by states, such as those imposed by the United Nations Security Council ('UNSC').[1] Professor Abi-Saab defined sanctions as 'coercive measures taken in execution of a decision of a competent social organ, i.e., an organ legally empowered to act in the name of the society or community that is governed by the legal system'.[2] Similarly, Professor Reisman observed that, while actors in the international arena may employ a variety of instruments to influence one another,
[w]hen these instruments are used by or with the authority of the international community, let's say the United Nations, it is appropriate to call them “sanctions" – military sanctions, economic sanctions, diplomatic sanctions or ideological sanctions. When they are used by individual states without the authorization of an international organization, the states using them try to appropriate the word 'sanctions,' but in fact these are forms of intense unilateral violence. This does not mean that the action is therefore unlawful: that is a different question.[3]
However, the term 'sanction' is now often used more broadly in international law to include sanctions adopted unilaterally by a single state, a group of states, or an international organisation.[4] The authoritative views cited above, which confine the term 'sanction' to lawful coercive measures adopted by competent bodies of the international community, distinguish these measures from unilateral sanctions imposed by individual states. The lawfulness of unilateral sanctions remains, a priori, less clear than, for example, sanctions adopted by the UNSC.
On the other hand, it may be argued that it is now too late to insist on a restrictive use of the term 'sanction' and that the more pertinent question today is whether the sanction in question is lawful under international law. Broadly speaking, sanctions in international law can be defined as any hostile measure formally adopted by an international organisation, a state or group of states against another state or group of states to influence the conduct of the latter.[5] This broad definition is agnostic as to the lawfulness of each sanction under international law.
This article does not need to solve this terminological conundrum, however, since it focuses specifically on sanctions adopted by the UNSC. Section 2 discusses the legal basis for the UNSC's power to impose sanctions. Section 3 explores some of the main limits that have been identified in relation to the exercise of these powers. Section 4 provides a conclusion.
Legal Foundations of the UNSC's Sanctioning Authority
It is widely accepted that, while the term 'sanctions' does not appear in any provision of the United Nations Charter,[6] the Charter confers the UNSC the power to impose them.[7] This power is enshrined in Chapter VII of the Charter, specifically in Articles 41 and 42.[8] Article 41 authorises the adoption of 'measures not involving the use of armed force', such as the 'complete or partial interruption of economic relations', while Article 42 authorises the UNSC to 'take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security'. These provisions give the UNSC wide discretionary powers to determine the nature and scope of the measures, whether coercive or non-coercive, required in each situation.[9] Under Article 25 of the Charter, UNSC decisions, including those imposing sanctions, are binding on all Member States. Aside from the limits discussed in section 3 below, the UNSC's exercise of its sanctioning powers under Articles 41 and 42 is contingent upon the UNSC determining that a threat to the peace, a breach of the peace, or an act of aggression exists, as defined in Article 39 of the Charter.[10] These powers are to be exercised to maintain or restore international peace and security.[11]
Since the UN's creation, the manner in which the UNSC has exercised its sanctioning authority has evolved significantly in terms of the objectives sought and the geographical and temporal scope of sanctions.[12] One of the most notable changes is the shift towards targeted or 'smart' sanctions, directed not at states but at individuals, entities and groups.[13] Although this type of sanctions was not envisaged when the Charter was drafted, it can be viewed as an implied power of the UNSC.[14]
Apart from the UNSC, no other UN body possesses a similar power to impose sanctions. In principle, the General Assembly lacks the power to adopt binding decisions, except in very specific cases, or enforcement measures.[15] However, in 1950 the General Assembly adopted the Uniting for Peace Resolution, under which it may make 'appropriate recommendations to Members for collective measures, including, in the case of a breach of the peace or act of aggression, the use of armed force when necessary, to maintain or restore international peace and security'.[16] Despite the controversy surrounding its validity[17] and while collective action was recommended under the Uniting for Peace Resolution in the context of the Korean crisis in 1951,[18] this resolution has not generally been relied upon as a basis
to apply sanctions.[19]
Limits to the UNSC's Powers
Constitutional limits
Article 24(2) of the Charter requires the UNSC to exercise its powers consistently with its Purposes and Principles.[20] Consequently, the UNSC's extensive powers are constrained by the requirements of justice and international law (Article 1(1)) [21], and respect for human rights and fundamental freedoms (Article 1(3)).[22] It has been argued that the UNSC's sanctioning authority is also constrained by the principle of proportionality.[23]
Some scholars argue that the UNSC also has obligations under customary international law[24]. While this view may be debatable, the prevailing position is that the UNSC is bound, at least, by peremptory norms of general international law or jus cogens. This approach has been endorsed by the European Court of Justice, which considers that (i) Member States, the UN, and the European Community are not bound by the UNSC resolutions that contravene jus cogens; and (ii) judicial review in relation to an action for annulment of a Community act implementing a Security Council resolution may, in exceptional circumstances, extend to determining its compliance with jus cogens.[25]
Respect for due process by the United Nations when applying sanctions
There has been additional debate since the introduction of targeted 'smart' sanctions regarding the limits of the UNSC's powers in relation to due process.
Initially, up to the early 1990s, the UNSC sanctions targeted entire states. This changed in 1993 when the UNSC imposed sanctions on the Angolan rebel group União Nacional para a Independência Total de Angola (UNITA). After acknowledging that comprehensive sanctions harmed civilian populations, the UNSC began adopting targeted sanctions against specific individuals and entities. Since then, the UNSC has prioritised targeted 'smart' sanctions designed to minimise unintended adverse side-effects on the most vulnerable segments of the targeted countries.[26]
While targeted 'smart' sanctions can be effective to avoid unintended effects, concerns have been raised regarding human rights and procedural safeguards. In fact, growing criticism in the early 2000s[27] led the UN General Assembly to call upon the UNSC, in the 2005 World Summit Outcome Document, 'with the support of the Secretary-General, to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, as well as for granting humanitarian exemptions'.[28]
In response to these demands from the international community, the UNSC adopted Resolution 1730 (2006), establishing a Focal Point for Delisting. Through this process, a UN official receives delisting requests from sanctions-affected individuals and entities and presents them to the relevant sanctions committee and Member States for their review and possible comment.[29]
Subsequently, the UNSC reinforced due process protections through Resolutions 1735 (2006), 1822 (2008), and 1904 (2009). Resolution 1904 created the Office of the Ombudsperson for counter-terrorism sanctions delisting requests.[30] Affected individuals can obtain information about imposed measures and submit delisting requests. The Ombudsperson, who is appointed by the Secretary-General, conducts an independent review and submits comprehensive reports to the relevant Sanctions Committee.[31]
Due process in the UNSC: challenges and criticisms
Despite improvements to the delisting process, the UNSC's sanctions regime remains the subject of debate in the international community. Certain countries have questioned the continued application of sanctions without adequate periodic review or assessment. This has resulted in an increased demand for stronger due process guarantees.[32]
In this context, some Member States and international institutions have proposed extending the Ombudsperson's mandate to cover other sanctions regimes. The Focal Point for Delisting, established in 2006, has significant structural shortcomings: it lacks independence, serves merely as an administrative channel for delisting requests, and leaves final decision-making power with the original designating committee.[33] Although the Ombudsperson process also has its limitations (for example, it does not provide a formal right to legal representation), it does place the burden of proof on states seeking to maintain listings, which is in line with
recent case law.[34]
Moreover, due process concerns extend beyond delisting mechanisms to encompass the initial listing process. Some scholars argue that in order to minimise subsequent legal challenges, the UNSC should conduct proportionality assessments and establish robust procedural safeguards before imposing sanctions. This requires case-by-case proportionality analyses prior to implementation and allows sanctions committees to apply tailored and proportionate coercive measures based on individual circumstances rather than imposing uniform measures on all sanctioned persons.[35]
Conclusion
The UNSC's sanctioning authority under Chapter VII of the UN Charter is a cornerstone of the collective security framework established by the international legal order. Although these powers are extensive, they are understood to operate within constitutional limits derived from the Charter's Purposes and Principles, fundamental human rights obligations, and peremptory norms of international law.
The shift towards targeted 'smart' sanctions, as opposed to comprehensive sanctions, reflects the international community's increasing awareness of the need to reconcile effectiveness with due process and respect for human rights. Despite improvements such as the Focal Point for Delisting and the Office of the Ombudsperson, continuing debate over proportionality assessments, robust procedural safeguards, and the extension of due process protections to all sanctions regimes demonstrate that the UNSC's sanctioning framework is still evolving.
The challenge ahead is to ensure that sanctions continue to serve as an effective instrument for maintaining international peace and security while upholding and safeguarding the rule of law and the fundamental rights of all those affected by their implementation.
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[1] G. Novak, 'Unilateral Sanctions and International Lawmaking' (2025) 50 Yale J Int'l L 298, p 304.
[2] G. Abi-Saab, 'The Concept of Sanction in International Law', in V. Gowlland-Debbas (ed.), United Nations Sanctions and International Law, Brill I Nijhoff (2001), pp 29–41, p 32.
[3] W. Michael Reisman, 'Sanctions and International Law' (2009) 4 INTERCULTURAL HUM. RTS. L. Rev. 9, p 11.
[4] Novak, supra note 1, p 304.
[5] See also Lori Fisler Damrosch, 'The Legitimacy of Economic Sanctions as Countermeasures for Wrongful Acts' (2019) 37 Berkeley J. Int'l L. 249, p 253.
[6] Similarly, although Article 16 of the Covenant of the League of Nations provided for sanctions to be imposed on a Member State that resorted to war in breach of certain Covenant obligations, Fischer Williams noted that 'neither the word “sanction" nor any word such as “penalty" or “punishment" occur[red] either in the article itself or elsewhere in the Covenant'. J. Fischer Williams, 'Sanctions under the Covenant' (1936) 17 Brit YB Int'l L 130, p 131.
[7] See, e.g. Benjamin V. Cohen, 'Principles Governing the Imposition of Sanctions under the United Nations Charter' (1951) 45 Am Soc'y Int'l L Proc 153; Margaret Doxey, 'International Sanctions in Theory and Practice' (1983) 15 Case W Res J Int'l L 273; Anne-Marie La Rosa, 'Les Sanctions des Nations Unies et le Droit International' (1999) 1 Int'l LF D Int'l 178, p 179.
[8] Article 40 of the Charter empowers the UNSC to issue provisional measures. Although in some contexts they may have effects akin to sanctions, provisional measures are generally intended to preserve the status quo or prevent the dispute from worsening, rather than to penalise; they should therefore not be characterised as sanctions.
[9] La Rosa, supra note 7, p 179; A. Tzanakopoulos, 'Strengthening Security Council Accountability for Sanctions: The Role of International Responsibility' (2014) 19 J Conflict & Sec L 409, p 410.
[10] J. Crawford, Brownlie's Principles of Public International Law (New York: Oxford University Press, 9th ed., 2019), p 733; M. Shaw, International Law (Cambridge: Cambridge University Press, 9th ed., 2022), p 3.
[11] Tzanakopoulos, supra note 9, p 411.
[12] K. E. Boon, 'U.N. Sanctions as Regulation' (2016) 15 Chinese J Int'l L 543, pp 543–544.
[13] Ibid, p 544.
[14] G. L. Willis, 'Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson' (2011) 42 Geo J Int'l L 673, pp 678–679.
[15] Crawford, supra note 10, p 631.
[16] General Assembly resolution 377 (V), 3 November 1950, para 1.
[17] See Forteau et al, Droit international public (Paris: LGDJ, 9th ed. 2022), pp 1382–1383.
[18] General Assembly resolution 498 (V), 1 February 1951.
[19] Whether or not they are characterised as sanctions, other UN bodies sometimes adopt measures that significantly affect entities and individuals – economically, reputationally or otherwise. While these measures may raise inter alia due process concerns similar to those discussed in section 3, they fall outside the scope of this article.
[20] Furthermore, under Article 25 of the Charter '[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter' (emphasis added).
[21] G. P. McGinley, 'Decision in the Lockerbie Cases' (1992) 22 Georgia Journal of International and Comparative Law, pp 577–607.
[22] A. Reinisch, 'Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions' (2001) 95 Am J Int'l L 851, pp 856-863.
[23] N. Jayakody, 'Refining United Nations Security Council Targeted Sanctions: Proportionality as Way Forward for Human Rights Protection' (2018) 29 Security and Human Rights 90, pp 99–100.
[24] Willis, supra note 14, p 711.
[25] CJEU, Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission (3 September 2008) ECLI:EU:C:2008:461.
[26] J. Weschler, 'The evolution of security council innovations in sanctions' (Winter 2009-10) International Journal, pp 31–43.
[27] Nada v Switzerland, App No 10593/08 (ECtHR, 12 September 2012).
[28] Resolution adopted by the General Assembly on 16 September 2005, 60/1, para 109.
[29] Security Council Report, 'The UN Security Council Handbook. A User's Guide to Practice and Procedure' (2019).
[30] In particular, the Office of the Ombudsperson was created to assist in the petitions for delisting of the list created pursuant to resolutions 1267 (1999) and 1333 (2000), sanctions imposed against al-Qaida and the Taliban regime.
[31] Resolution 1904 (2009), adopted by the Security Council at its 6247th meeting, on 17 December 2009.
[32] Security Council Report, 'In Hindsight: UN Security Council Sanctions' (November 2023)
[33] T. Biersteker & R. Brubaker, 'Enhancing Due Process in UN Security Council Targeted Sanctions Regimes' (2021)
[34] RR. Brubaker et al., 'Fairly clear risks: Protecting UN sanctions legitimacy and effectiveness through fair and clear procedures' (2018) United Nations University Press, and the CJEU, in Joined Cases C-584/10 P, C-593/10 P, C-595/10 P, European Commission and ors v Kadi, Judgment (18 July 2013) ECLI:EU:C:2013:518.
[35] Jayakody, supra note 24, pp 90–119.
